Report No. 150 (2021) IACHR. Petition No. 172-15 (Chile)

• Year: 2021
• Case Type: Admissibility
• Respondent State: Chile
• Court: Inter-American Comission of Human Rights

REPORT No. 150/21

PETITION 172-15

REPORT ON ADMISSIBILITY

RAPA NUI PEOPLE

CHILE

OEA/Ser.L/V/II.

D.. 158

14 J. 2021

Original: Spanish

Electronically approved by the Commission on J. 14, 2021.

Cite as: IACHR, R. No. 150/21, Petition 172-15. A.. R.N.P.. Chile. J. 14, 2021..

www.iachr.org

I. INFORMATION ABOUT THE PETITION

Petitioner	Ciro Colombara López, B.M.R., Jennifer Alfaro Montecinos, A.H.C., and Erity Teave Hey
Alleged victim	Rapa Nui People
Respondent S.	Chile1
Rights invoked	Articles 1 (obligation to respect rights), 2 (domestic legal effects), and 21 (right to property) of the American Convention on Human Rights2

II. PROCEEDINGS BEFORE THE IACHR3

D. of filing	J. 23, 2015
Additional information received at the stage of initial review	A. 16, August 28, and October 8, 2015; A., 13, 2016; and February 20, 2017
N. of the petition	A. 25, 2017
S.’s first response	October 12, 2017
Additional observations from the petitioner	September 18 and 27, and November 15, 2017; February 12, 2018; and October 1, 2020
Additional observations from the S.	November 12, 2017; and August 15, 2020
Precautionary measure	PM-321-10 granted on February 7, 2011, and lifted on October 31, 2011

III. COMPETENCE

Ratione personae	Yes
Ratione loci	Yes
Ratione temporis	Yes
Ratione materiae	Yes, American Convention (deposit of instrument of ratification on August 21, 1990)

IV. DUPLICATION OF PROCEDURES AND INTERNATIONAL RES JUDICATA, COLORABLE CLAIM, EXHAUSTION OF DOMESTIC REMEDIES AND TIMELINESS OF THE PETITION

Duplication of procedures and international res judicata	No
Rights declared admissible	Articles 4 (right to life), 8 (fair trial), 12 (freedom of conscience and religion), 21 (right to property), and 25 (judicial protection) of the American Convention, in connection with its Articles 1.1 (obligation to respect rights) and 2 (domestic legal effects)
Exhaustion or exception to the exhaustion of remedies	Yes, under the terms of Section VI
Timeliness of the petition	Yes, under the terms of Section VI

V. SUMMARY OF ALLEGED FACTS

1. The petition refers to the alleged international responsibility of the S. of Chile for the alleged violation of the Rapa Nui People's right to collective property over the territory and natural resources of E.I. and their right to autonomy. The petitioners describe that despite the fact that the requests for recognition and autonomy of the R.N.P. have been constant for more than 125 years, currently more than 70% of their ancestral territory is managed and owned by the S., which has caused irreparable damage to the lifestyle and development of the indigenous people. In this sense, the petitioners insist on the S.'s duty to restitute the land in order to protect the ancestral property of the R.N. people and their right to self-determination.

2. The petitioners explain that for the R. as an indigenous people, the land plays a role of utmost importance, not only economically, but also in relation to their worldview, expression and development of their physical vitality, culture and spirituality. In particular, the petitioners describe that the R.N. people's close relationship with the land must be understood as an inalienable patrimony and ancestral historical symbol of their culture, as well as the basis for the source of their day-to-day subsistence, inasmuch as their survival depends on the proper management, preservation and use of the island's land. The petitioners also detail that the R.N. people conceive water as a source of life and a bond of spiritual harmony for all their members, which is manifested artistically, religiously and spiritually in the numerous archaeological and hieroglyphic vestiges located in sacred sectors. In this regard, the petitioners argue that this link between the R.N. people and water is based on the continuous and successful administration of the sea and its resources, hand in hand with a spiritual concern for its conservation and development.

3. The petitioners state that historically, the S. has maintained a colonizing will, controlling the needs of the R.N.P. through C. institutions which, together with the serious violations of the human rights of the R.N.P., has resulted in a distrust of the indigenous people towards S. policies. The petitioners narrate that, after decades under the control of Western settlements, on September 8, 1888, the S. of Chile and the Rapa Nui People, represented by their K., reached an "Agreement of Wills" according to which the indigenous people recognized the cession of sovereignty in favor of the C.S., while the S. committed itself to recognize the right to land ownership, to respect the investiture of the R.N. chiefs, and to provide protection and socioeconomic development to the island's inhabitants. H., the "Agreement of Wills" was never fulfilled by the S. and, on the contrary, the island was granted in concession to the Compañía Explotadora de Isla de Pascua (hereinafter "CEIP"). The petitioners point out that in 1933, the S. of Chile unlawfully registered, without the knowledge of the indigenous people4, the whole of E.I. or R.N. as public lands of the S. based on the principle of terra nulis, lands without owner. T. add that this inscription remains fully valid and has served as a legal basis for all the actions that the C.S. has carried out on the island, especially for the installation of public services for the regulation of the National Park; for the collection of maritime concessions; for the "granting of individual property titles" and even the transfer of part of the island to non-indigenous individuals.

4. The petitioners describe that, without safeguarding the archaeological property or its inhabitants and without their participation, the S. declared the island a national park by Supreme D. No. 103 of the Ministry of Lands and Colonization dated J. 16, 1935, and a National Historic Monument by D. No. 4,536 of the Ministry of Public Education dated J. 23, 1935; first under the administration of the CEIP and then, in 1953, under the direct administration of the National Navy. L., the petitioners hold that, under a logic of historical reparation to the R.N.5, on M. 1, 1966, the S. adopted Law No. 16,441 which created the E.I. Department, finally recognized full citizenship to these people and established a series of tax benefits. T. also point out that by means of a constitutional amendment to Article 126 bis, in 2007 the S. declared E.I. a special territory by virtue of its "extreme geographical location" without making any reference to its special character as a purely indigenous territory6.

5. In view of said context, the petitioners maintain that they submit this petition given the recent situations that reveal the continued lack of recognition of the R.N. People’s collective right to property of E.I.. S., they claim that on J. 20, 2012, the R.N.P., represented by the K. of Rapa Nui, filed a civil action against the A. General’s Office before the Second Court of Valparaiso requesting the compliance of the Annexation Agreement. The petitioner informs the civil action included claims that the S. had not taken the necessary steps for Congress to ratify the agreement; that the Rapa Nui People had ceded sovereignty, but not the right to property, to Chile; and that in registering the island as state-owned in 1933, the S. violated their right to property of the land. T. submit that the trial and appellate courts dismissed the action on J. 20 and J. 24, 2014, respectively on the grounds that the Annexation Agreement was governed by the principles of international law and not by civil law, that this agreement marked the beginning of national sovereignty and therefore it was inadmissible to review an action that could affect Chile’s national sovereignty and territory, and that the action had been barred by the statutes of limitation. In its judgment of J. 24, 2014, with a resolution dated August 28, 2014, the court of appeals found that the island was officially brought under the sovereignty of Chile on September 9, 1888, when a C. state agent took possession of it.

6. The petitioners, moreover, allege that the R.N. Council of Elders, led by A.H., requested the undersecretary of the Armed Forces to eliminate the collection of illegal fees against the R. anglers for artisanal fishing on the coastline, related to the maritime concession agreement, in accordance to the provisions of the E.I. Act.7 T. assert that on M. 3, 2014, the undersecretary denied the request, arguing that the benefits only applied to fiscal taxes and contributions, but not to taxes and fees on maritime concession agreements. In view of this, on A. 4, 2014, the president of the Council of Elders filed an appeal for constitutional protection to the Court of Appeals of Santiago seeking the elimination of fees on their maritime concession agreement where they alleged the violation of their collective right to property of the land and its resources. The Court of Appeals of Santiago declared the remedy admissible on August 6, 2014, ruling the elimination of such fees.8 H., by its judgment of November 24, 2014, with a resolution dated December 4 of that year, the Supreme Court revoked this decision, claiming that the filing of the remedy was overdue since the 30-day deadline had to be calculated from the date a concession agreement is granted—in this case, it...